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DaSilva v. Border Transfer of MA, Inc.

United States District Court, D. Massachusetts

May 1, 2019

MARCOS DASILVA and MATTEUS FERREIRA, on behalf of themselves and all others similarly situated Plaintiffs,


          Hon. Patti B. Saris Chief United States District Judge.


         Plaintiffs Marcos DaSilva and Matteus Ferreira worked as delivery drivers for Defendant Border Transfer of MA, Inc. (“Border Transfer”). They claim Border Transfer improperly treated them as independent contractors when they were, in fact, employees and that, as a result, Border Transfer unlawfully deducted certain business expenses from their pay. Plaintiffs bring claims under the Massachusetts Wage Act against Border Transfer and its former president Patrick McCluskey on behalf of a certified class of individuals who entered into contracts with Border Transfer to provide delivery services, personally provided such services for Border Transfer for at least forty hours per week, and were classified as independent contractors. Defendants move for summary judgment on the class claims on the basis that, even if Border Transfer misclassified its drivers as independent contractors, they are not entitled to recover the various deductions they seek. Defendants also move for summary judgment on the individual claims of class member Humberto Chantre. Finally, Plaintiffs seek summary judgment on whether Border Transfer misclassified the class members as independent contractors and whether McCluskey is individually liable for Border Transfer's alleged Wage Act violations.

         After hearing, the Court DENIES Defendants' motion for summary judgment (Docket No. 108) and ALLOWS IN PART and DENIES IN PART Plaintiffs' motion for partial summary judgment on liability (Docket No. 122). The Court also DENIES as moot Plaintiffs' motions to strike the testimony of Thomas N. Hubbard (Docket No. 115 and Docket No. 145) because resolution of the motions for summary judgment does not depend on his expert opinion.


         The following facts are undisputed except where otherwise stated.

         I. The Parties

         Headquartered in Hendersonville, Tennessee, Border Transfer is a property broker registered with the Federal Motor Carrier Safety Administration (“FMCSA”). See 49 U.S.C. § 13102(2). As a broker, Border Transfer arranges home delivery services for large retail stores like Sears.[1] Border Transfer itself does not deliver goods. Instead, it contracts with FMCSA-authorized motor carriers to perform home deliveries. See 49 U.S.C. § 13102(14). It has around fourteen motor carriers working at any given time out of its Westwood, Massachusetts facility. It runs between fifteen and twenty delivery routes per day and a few more around the holidays.

         Border Transfer contracts with its motor carriers through “Contract Carrier Agreements” (“CCAs”). It has used two standard CCAs during the period at issue in this case, one until early 2017 and the other since. Each CCA states that the motor carrier is an independent contractor of Border Transfer and that none of the motor carrier's personnel are Border Transfer employees. The motor carriers must own their own trucks and are responsible for all operating expenses. The CCAs permit Border Transfer to deduct from its payments to the motor carriers for any liability it incurs for property loss or damage. The motor carriers must carry certain types of insurance, including for cargo damage and workers' compensation for all of their workers. The motor carriers cannot subcontract deliveries. The CCA in use through early 2017 includes detailed instructions on how drivers are to perform their deliveries, but the newer CCA does not.

         Border Transfer only enters into CCAs with corporate entities. Some drivers formed corporate entities specifically to contract with Border Transfer. Others did so before contracting with Border Transfer. New drivers must submit their company name, information on their compliance with Department of Transportation requirements, and proof of insurance.

         In some cases, Border Transfer contracts with motor carriers that consist of a single driver who personally performs the delivery services. That was the case with class representative Marcos DaSilva, who entered into a CCA with Border Transfer through Alpha Logistics Trucking, LLC (“Alpha Logistics”) and worked for Border Transfer between November 2014 and July 2015. He formed Alpha Logistics because Border Transfer told him he needed a corporate entity to work for it; a Border Transfer representative even helped him fill out the paperwork to form his LLC and get FMCSA approval. DaSilva worked five to six days a week as a driver during his time with Border Transfer. He did not work for any other company, and all of his income came from Border Transfer deliveries.

         In other cases, Border Transfer contracts with motor carriers that employ multiple drivers. That was the case with Matteus Ferreira, the other class representative. Ferreira was the joint owner of Father & Son Transporting LLC (“Father & Son”) with his father, Marcos Ferreira. Ferreira worked fulltime for Border Transfer from May 2012 until November 2015, during which he did not do work for any other company. Ferreira worked as a driver for the duration of the contract, and Father & Son operated two other trucks during this period.

         II. Working for Border Transfer

         A. Daily Schedule

         Drivers perform their deliveries from Sears' Westwood, Massachusetts warehouse. Each day, Border Transfer calls its motor carriers to offer routes for the following day. Motor carriers can accept or decline a route. Some drivers are assigned to standby shifts and will only receive a route if there is an issue with another driver. Sometimes Border Transfer gives a driver a different route than the one he signed up for the prior day. The parties dispute whether a carrier is charged for declining a shift. Border Transfer often offers drivers extra deliveries in the middle of the day. Drivers can turn down these deliveries or negotiate for additional pay beyond the regular per-stop rate.

         Most mornings when drivers arrive for their routes, Border Transfer holds a short “stand-up” meeting. At the meeting, Sears and Border Transfer personnel go over new products, give demonstrations on how to install products, provide delivery instructions, and discuss safety. Drivers must attend these meetings, but the parties dispute whether there are consequences for not doing so. Some drivers claim they were assigned to standby shifts as punishment for missing the meetings. Drivers also receive a penalty on their customer ratings scores if they are late to the meetings. However, according to other drivers and Rogerio Matos, an assistant manager for Border Transfer, Border Transfer does not take attendance and does not impose any consequences if a driver misses a meeting.

         After the meeting, Border Transfer gives each driver a manifest with his delivery route. Sears prepares the manifests, and Border Transfer assigns them to specific drivers. After loading packages into the truck and receiving a signoff from Border Transfer, the driver leaves on his route. The manifest contains the order of deliveries and time windows for each delivery, which the driver must follow. Border Transfer dispatchers monitor each driver's progress throughout the day. If a driver is not making his deliveries on time, a dispatcher will check in with him and notify Border Transfer managers. Because some deliveries involve replacing old products, drivers must return to the Westwood facility at the end of the day to return the “haulaway” products.

         It is disputed whether there are consequences for failing to follow the manifest. According to Matos and DaSilva, there are not, though DaSilva testified that he did not deviate from the manifest because it always gave the most efficient route. On the other hand, Ferreira was chastised for making deliveries out of order and said Border Transfer did not pay for a stop if a customer complained that he missed a delivery window. There is also conflicting evidence about how easy it is to switch routes. Some drivers reported that, although they can switch routes, they generally do not because Border Transfer attributes any issue to the originally assigned driver. But two drivers that worked for Father & Son said the Ferreiras decided which routes each driver got and always gave the easy route to Matteus.

         The CCA Border Transfer used before early 2017 provides detailed guidelines for how to deliver and install various products. Drivers must call each customer thirty minutes before arrival. They must log when they arrive at and complete each delivery and secure a signature from the customer. Beyond logging their progress, drivers only have to contact Border Transfer if there is a problem with a delivery. The parties dispute whether drivers can contact a customer directly if they are running late for a delivery.

         A route consists of fifteen to twenty stops and takes at least ten hours to complete. Drivers work between four to six days per week. They generally remain available every day of the week since they only learn one day in advance of a shift. However, some motor carriers that own multiple trucks have contracts with other delivery companies and assign some of their trucks to other routes. Border Transfer's contract with Sears forbids it from allowing the drivers to “co-load” their trucks with deliveries for other companies while they are on a route for Border Transfer without Sears' permission. It is unclear whether Border Transfer enforces this prohibition.

         B. Other Aspects of the Job

          Border Transfer requires its drivers to wear a uniform consisting of a blue shirt, blue pants, a blue jacket, and an armband containing an Id. The uniform says “Delivery Pro” on it. Motor carriers order their uniforms from Border Transfer. Delivery teams cannot leave the warehouse without the uniform.

         Many motor carriers hire workers of their own as helpers to assist with delivery routes and/or as secondary drivers to drive additional trucks. The CCA gives Border Transfer “the right to request that any personnel of [a motor carrier] not perform Carrier Services” on its behalf. Dkt. No. 110-4 ¶ 6(E). Any secondary driver or helper must pass a background check and drug test. Motor carriers generally make hiring, firing, and pay decisions for their secondary drivers and helpers on their own. The parties dispute, however, whether Border Transfer requires motor carriers to run hires by it for approval or has ever told a carrier it could not hire someone. One driver picked up and dropped off his helper outside the warehouse after Border Transfer told him not to use that helper.

         Motor carriers own their own trucks, which must be at least twenty-six feet long. Although the CCA requires trucks to be white, Border Transfer does not enforce this requirement. Motor carriers can put only their own names, not Border Transfer's, on their trucks. Drivers can park their trucks wherever they want overnight, though many park at the warehouse with Border Transfer's permission. They can also take their trucks anywhere for maintenance.

         After each delivery, Sears asks the customer to rate the driver. Sears sends ratings on each driver to Border Transfer, which posts them daily at the warehouse. The top six drivers are called the “Top Dogs, ” and their carriers can choose their routes for the next day. Matos stated that drivers do not have to maintain high ratings to receive routes, but one driver claimed that Border Transfer assigns standby shifts or no route at all for low ratings.

         Border Transfer does not limit the amount of vacation its drivers may take. A driver taking time off can either hire another driver to cover his routes or notify Border Transfer that he will not pick up routes for a certain period.

         C. Payments

         Border Transfer pays the motor carriers a flat, non-negotiable rate per stop. It makes a number of deductions from these payments. First, when a motor carrier starts driving for Border Transfer, Border Transfer deducts $200 weekly until it has a $3, 000 “performance bond” per truck. Border Transfer keeps the bond until the motor carrier terminates its contract, uses the bond to cover any remaining property damage claims, and eventually returns the remainder to the motor carrier. Second, if a customer complains about product or property damage, Border Transfer pays her and then deducts the amount from its payment to the motor carrier whose driver performed the delivery. Third, Border Transfer makes “No Bill” (“N/B”) deductions to its motor carrier payments if a scheduled delivery is cancelled or a driver does not complete a delivery because the customer is not home, the customer rejects the shipment, or the driver does not install the product properly. Finally, Border Transfer deducts the costs of uniforms.


         Plaintiffs filed a proposed class action complaint on June 23, 2016. The original complaint named Border Transfer as the sole defendant and contained claims for violation of the Massachusetts Wage Act and unjust enrichment. Border Transfer moved to dismiss both claims. On January 5, 2017, the Court held that the Wage Act claim was not preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”), 49 U.S.C. § 14501(c), but dismissed the unjust enrichment claim because the Wage Act provided an adequate remedy at law. DaSilva v. Border Transfer of MA, Inc., 227 F.Supp.3d 154, 155 (D. Mass. 2017) (DaSilva I).

         Plaintiffs filed an amended complaint on May 1, 2017, which names Patrick McCluskey as an additional defendant and contains a single count for violation of the Wage Act. In substance, Plaintiffs allege that their misclassification as independent contractors resulted in unlawful deductions from their pay for uniforms, property damage claims, performance bonds, and N/B adjustments, as well as unlawful requirements that they pay for workers' compensation and cargo insurance. On November 9, 2017, the Court certified the following class for liability: “[a]ll individuals who 1) entered into a Contract Carrier Agreement (or similar agreement) directly or through a business entity; 2) personally provided delivery services for Border Transfer on a full-time basis in Massachusetts (at least 40 hours per week); and 3) who were classified as independent contractors, at any time since June 23, 2013.” DaSilva v. Border Transfer of MA, Inc., 296 F.Supp.3d 389, 407 (D. Mass. 2017) (DaSilva II).

         On October 8, 2018, Defendants moved for summary judgment. Plaintiffs filed their own partial motion for summary judgment on November 20, 2018.


         I. Legal Framework

         A. Standard of Review

         Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute exists where the evidence “is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir. 2018) (quoting Cherkaoui v. City of Quincy, 877 F.3d 14, 23-24 (1st Cir. 2017)). A material fact is one with the “potential of changing a case's outcome.” Doe v. Trs. of Bos. Coll., 892 F.3d 67, 79 (1st Cir. 2018). “The court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in [its] favor.” Carlson v. Univ. of New Eng., 899 F.3d 36, 43 (1st Cir. 2018). When the parties cross-move for summary judgment, the court must evaluate each motion “separately, drawing inferences against each movant in turn.” Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 21 (1st Cir. 2018) (quoting EEOC v. Steamship Clerks Union, 48 F.3d 594, 603 n.8 (1st Cir. 1995)).

         The burden on a summary judgment motion first falls on the movant to identify “the portions of the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that demonstrate the absence of any genuine issue of material fact.” Irobe v. U.S. Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). If the movant meets this “modest threshold, ” the burden shifts to non-movant to “point to materials of evidentiary quality” to demonstrate that the trier of fact could reasonably resolve the issue in its favor. Id. The court must deny summary judgment if the ...

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